Re: A Response to the NABER Proposal

[ARC Ecology <arc@igc.org>]

Careerpro:

While the NABER concept has merit, we do have a number of
concerns about the content which we hope you can address. We
should probably also say right off the bat, before anyone
misinterprets our intention, that we view the NABER proposal as
something quite different in purpose than the RAB Caucus. We see
NABER as a proposal to create a committee wherein 16-20 people
represent all RABs, whereas we see the Caucus as an entity that
is open to all RAB community members but speaks for only the
Caucus. In fact we see the NABER proposal as a reinforcement of
the need for the RAB Caucus.

The items listed below are in no order of priority, and more
questions continue to come up as we discuss the proposal
internally at Arc. The comments are intended to be constructive,
however we need to also state that, now that we've had a bit of
time to review the proposal, we've acquired some level of
skepticism. While the proposal looks good in the abstract, at
the core of our concern is the question about function,
performance and fairness with regard to implementation. We see a
number of ways in which this proposal benefits no one but DoD.
Finally, we apologies in advance for the length and level of
detail in the response to what is essentially a short proposal.
Having been involved with the implementation of many projects
similar to NABER, Arc is very familiar with the territory.

1. How long will it take to create NABER?

Before anyone goes rushing out to cast a ballot for a NABER
representative, keep in mind it could be a while. If DoD needs
to create a policy, that leads to an executive order, that leads
to a resolution, that leads to an act of Congress that
authorizes funding and implementation of the NABER proposal,
which in turn requires the promulgation of a rule making and
notification in the Federal Register and a public comment period
including a response to comments it will be 2000 before anything
happens. Keep in mind that although DoD implemented the RAB
policy as it was going through the formal approval process, it
was nevertheless a full year after the Presidents five point
plan was released before RABs began to pop up, it was another
year before RABs were around in any number, and another year
before most were up to speed.

Even if DERTF orders the immediate implementation of NABER and
follows the same path as it did with RAB implementation, there
are a number of things that will happen that will almost
guarantee the elections would not occur before the summer or
fall of 1998. Once DoD decides to create NABER it will still
most likely have to task a contractor to carry through with the
implementation. Most RABs that we are in contact have charters
or bylaws that prohibit the members from speaking on behalf of
the RAB and also prohibit the RAB from electing someone to do
so. So once a contractor is found to manage the process, RABs
will have to amend their charters and bylaws to enable them to
participate in the elections. Only after these two tasks are
accomplished could the nomination and review process take place.
Assuming 60-90 days to task a contractor and get the program
together, another 60 - 90 days for nominations and the
circulation of candidate data. The earliest one could expect an
election is July or August 1998. The Federal funding year ends
October 1, so unless there is some money left over NABER won't
begin to work in earnest until 1999. Its first recommendations
probably won't come forward until the middle or end of that
year. As a result, NABER would finally be up to speed well after
many of the critical policy issues, like the Sunsetting of RABs,
have already been settled, with RAB members continuing to be out
of the loop.

The same would be true if it were the EPA that were the
implementing agency. Even if NABER is to be a completely
independent entity (which would be difficult under its proposed
configuration) it will have to go through all of the funding and
implementation hoops the Caucus is going through. Finally even
if DoD and EPA agree to fund NABER, as an independent entity, to
speed up the process they would still be under no obligation to
agree to the recommendations of NABER while NABER itself will be
beholden to the agencies for its existence.

Given the problem with timing, funding and the ongoing
developments on the issue front, how will NABER impact the
issues that RAB members are concerned about now?

2. Why create another body consisting of a small number of
representatives as opposed to developing one that is more
broadly representative in actuality?

There are several ways to look at the development of a body
intended to be representative of RAB thinking. The NABER
proposal seeks to create "a system of election in which RABs
nationally are lumped into groups of 25 to 30 RABs." We have a
number of concerns about this proposal.

>First, if two individuals are elected from each grouping the
result will mean that out of 250+ RABs in the United States
there will only be 16 to 20 individuals elected to NABER which
we are concerned is too small a number to be actually
representative of the issues and communities impacted by base
cleanup.

>Second, most RAB members do not have a lot of interaction with
each other. As a result, asking people to vote in this way will
require a real electoral procedure including a nominating
process, distribution of statements, disclosure of conflicts of
interest, and neutral vote tabulation. This will be a costly,
complicated process which as described above will also be time
consuming.

>Third, vote tabulation is a very sticky point. While we're not
yet ready to ask former President Carter to monitor the
election, we are concerned that DoD, EPA and their contractors
have substantive conflicts of interest in the outcome of the
election. There are significant ethical and legal questions
regarding the efficacy of DoD, EPA or one of their contractors
coordinating the elections.

>Forth, we are concerned about EPA or any other agency playing
the role of leveling the playing field with regard to
environmental justice and the elections. Much like a Mayor
choosing individuals to fill vacant seats on a City Council, the
agency involved would have an important hold over their
candidates. If this were done, entities like the one that
promoted California's Proposition 209 could see NABER as a prime
target and muddle up the RAB process by making it victim to
their ideological agenda. There are other ways to ensure that a
NABER type entity be truly reflective of the enormous impact
military pollution has on communities of color.

>Fifth, aggregating RABs together in such large numbers would
make regional representation difficult. For example 24 states
have less than 4 RABs each, according to the DoD. Would RABs
from Montana, Idaho, North Dakota feel any more comfortable
being lumped together with Washington's Peuget Sound RABs than
they would being lumped together with RABs from Illinois? In the
meantime, California has 48 alleged RABs. Would it be fair for
two individuals to represent the RABs in ten states? In
practical application, the model proposed has some serious
drawbacks. Anyone familiar with voting district apportionment
issues will also notice that this methodology runs the
additional risk of assuring an imbalance against full
participation by communities of color, which is probably why
Careerpro offered the earlier caveat. Unfortunately neither
truly address the issue of meaningful participation and
representative election.

>Sixth, the composition of some RABs may make a fair national
election difficult. RAB make-up varies tremendously from base to
base. One of the principle concerns Arc has with regard to RAB
implementation is whether or not RABs are composed of community
members that are neighbors and public interest organizations or
whether they are composed of community members who are
regulators, governmental agency representatives and contractors
with a few former DoD employees/ servicepersons/ vendors
sprinkled in for a "resident's perspective." A number of RABs
are dominated by regulators, agency reps and contractors who
participate as community members. DoD refuses to allow access to
the names and addresses of RAB members so independent
corroborative research cannot be done as to ascertain whether
all RAB members actually conform to the President's executive
order, subsequent legislation and branch service guidances.

>Seventh. If two individuals are to represent 25-30 RABs a
fairly effective means of communications is essential to making
that process work. Currently DoD resources have been rather poor
at ensuring the proper dissemination of guidances and policy
proposals. The representative process, particularly over large
geographic areas will place substantial burdens in terms of
costs (unless reimbursed) and time on the individuals elected to
NABER.

It seems to us, as currently configured, the proposed NABER
model risks creating an extremely compromised national RAB board
that is not truly representative of the communities impacted by
base cleanup, but will have the ability to promote itself as
speaking for everyone. For NABER to be truly representative it
will require substantial coordination between RABs and their
representatives but no process is outlined in the proposal.

How does Careerpro envision resolving these issues in the
proposed NABER election process and representative process?

3. If developing a national entity representative of all RAB
members is the objective, why not create one that is broadly
based such as a National Conference of RAB Members?

If the objective of NABER is to create a mechanism for
facilitating RAB input directly into the DoD's decisionmaking
process than a more broadly based approach would seem more
appropriate. One alternative that came to mind today as we
discussed the pros and cons of the NABER proposal, creates a
simple process for resolving the problems outlined above.

Instead of creating the proposed narrow participation model
outlined in NABER, DoD could simply create a National Conference
of RAB Members. Under this alternative strategy the DoD would
invite a representative FROM EVERY RAB in the country to a
national meeting. The representative would be elected by their
colleagues on their RAB, eliminating the need and expense for a
complicated electoral system. While this would mean that in
excess of 250 RAB members/ representatives would participate in
the meeting: it is not an unusually large number of people to
participate in a decision-making meeting. There is a lot of
experience around in facilitating large meetings, and DoD
gatherings of this and larger sizes are not at all unusual.

The Conference could convene twice a year, say February and
September. In February, DoD would present RAB members with the
policies they will be deliberating that year. The RAB
representatives could then take those initiatives home and
discuss them locally with their peers. If need be, the
Conference could create committees to meet via teleconference or
email during the year to discuss their various perspectives and
resolutions on the subject. Once a committee comes forward with
a proposal it would be disseminated to the RABs which would then
vote on it. In September, the RAB representatives would meet
again, discuss the results of the years deliberations and vote
on a series of recommendations to DoD.

This model would encourage DoD to present its game plan a year
in advance to RAB members and provide a mechanism for close to
direct involvement in the forming of policy. It would ensure
that a Montana perspective got into the discussion, the same as
a California one.

Would a National Conference of RAB Members cost more than NABER?
Most likely, but those costs would be allocated differently and
the results would are also likely to be different. Instead of
spending money on a cumbersome electoral process designed to
limit the number of potential participants in the discussion, an
NCRB would focus resources on maximizing participation.
Ultimately it would probably cost the same to hire a contractor
to manage the election process as it would to bring everyone to
DC. Two meeting of representatives of the RABs from around the
country certainly isn't much to ask for when considering the
gains the Pentagon would make in public involvement and
feedback.

Would an NCRB be more democratic and inclusive? While, as
mentioned above, there are a number of RABs that have
questionable community representation, this larger process has
the capacity to overcome that imbalance: without the need of
agency involvement to ensure the participation of minorities and
communities of color.

Again this only a quick thought on how the ends of the NABER
could be achieved through a more democratic, less complex means.
If NABER can be reconfigured to more closely approximate this
model, that would also be worth reviewing. Unfortunately, the
problem with implementing a National Conference of RAB Members
proposal is the same as that of implementing the NABER proposal,
time. Both models would probably take the same amount of time to
get going and require RABs to amend their charters. The benefit
of the NCRB model is it is more inclusive and will promote
greater participation by communities of color. 3. If a smaller
committee is preferable, why not expand membership in DERTF to
include RAB community members as opposed to creating an entirely
different committee?

One way of potentially shortening the time period for
implementation is to expand the membership of DERTF. If a
smaller body is desirable, DERTF could be expanded to include
RAB members. DERTF currently has representatives from the EPA,
Western Governors Association, National Association of Attorney
Generals, public interest organizations such as the Energy and
Environmental Study Institute and the military. While it is
chaired by the Undersecretary of Defense for Environmental
Security, and RAB members would not control the agenda, if
membership in DERTF was expanded to include RAB community
members, there would at least be seats at the DoD's table. It
would give RAB representatives an actual opportunity to
participate in decisionmaking meetings. In 1996, the California
RAB Caucus successfully negotiated a reconfiguration of the
California EPA Base Closures Environmental Advisory Group to
include more RAB representation as well as participation from
Local Reuse Authorities. The hope was that the Advisory Group
would become a forum for discussing and resolving issues
pertinent to base closure. Unfortunately the CA EPA Advisory
Group was just advisory, DERTF on the other hand is the
Pentagon's permanent FACA committee on cleanup, an entity with
the authority to make recommendations to the military. In 1997
CA EPA was forced to kill the Advisory Group as a result of DoD
cut-backs. DERTF is legislatively mandated, so canceling their
meetings would be much more difficult. Ten to fifteen RAB
members elected to DERTF could make a big difference in the
outcome of that group's deliberations.

4. Would NABER be a Federal Advisory Committee Act (FACA)
compliant entity?

This is a fairly important point to Arc, because we see little
benefit to creating another toothless committee. For those
unfamiliar with the term, a Federal Advisory Committee compliant
with the FAC Act, has acknowledged authority within the process
they are asked to advise on. They make recommendations and the
agencies involved need to take those recommendations seriously
and have meaningful responses when they fail to comply with
requests made by the Committee. FACs also have to comply with
conflict of interest regulations which means that its members
have to disclose any financial linkage to the entity they are
advising. The FFERDC was not a FAC and neither are the RABs.

With all due respect to the FFERDC process, we at Arc don't see
much that came out of it other than a lot of comfortable
polemics sandwiched between a nice looking cover. From our
perspective the educational benefits of identifying how well the
process could work was undermined by the disempowerment most RAB
members felt when it became clear the contents of the FFERDC
report were going to be ignored by DoD. RAB members are
thirsting for real input into the process. I don't know of many
RAB folks that would be willing to spend a year working on
policy recommendations to DoD which was then left up to the
agency to accept or reject. That already happens at RAB
meetings.

While the FAC process is far from perfect, for NABER to have
meaning it needs to be a full FACA compliant entity, it needs
teeth. Otherwise NABER will simply be another vehicle for the
DoD to promote its "sensitivity to the stakeholders", while
evading serious commitment to participation.

Summary

While Arc has serious reservations about the content of the
proposal, we certainly don't have much disagreement with the
concept. NABER was a fine proposal when Sam Goodhope first made
it three years ago. The problem is that this current version of
the proposal is not well thought through. It doesn't learn from
history. Clearly RAB members need to be a serious force in
formulating DoD's national cleanup policies. RAB members have
the experience, the concern and the practical understanding to
help DoD through the process, when DoD bothers to listen. Most
RAB members we speak to would agree with that concept in a New
York minute. What is needed however are serious vehicles to get
DoD to change its behavior. By the end of next year most cleanup
activities, at least at closing bases, will transit from
planning to implementation. For at least 300 communities in the
United States, the time for dallying has run out.

Five years after the creation of FFERDC, RABs, and a scad of
working groups we have a cleanup process that emphasizes risk
management over remediation, an early transfer process that
seeks to transfer the costs of cleanup as much as possible onto
the communities already burdened with recovering from base
closure, and a process for community involvement in cleanup
decision-making that is more pro-forma than participatory. If
NABER follows the same path to implementation as the programs
that have preceded it, it could be years before it comes into
meaningful existence. The same is true for a National Conference
of RAB Members or any other similar proposal created at this
point. The problem with the NABER proposal, as currently
configured, is that offers the same model of solution that has
lead us to this point and assures us of no better outcome.

That's why, to paraphrase an old saying, Arc is sticking with
the Caucus. The RAB Caucus is already being organized. It is
independent from DoD, EPA and their contractors. The Caucus is
open to all RAB Community Members and makes an effort to provide
funding to enable folks to get to the meeting further leveling
the playing field. When the RAB Caucus speaks, it speaks for
itself so RAB charters need not be changed (although Arc isn't
particularly happy with the patently unconstitutional aspects of
those sections of charters). Thirty RABs will have Community
Members participating in the January meeting. By the September
meeting in Washington DC we hope to double that number. With the
energy and interest we are currently seeing from RAB Community
Members in the Caucus, it has the potential for being a powerful
helper to RABs, base cleanup and military pollution prevention/
control everywhere in the US.

As we said earlier, we do not see it as a NABER versus Caucus
situation. We think there is an important role for the Caucus
whether or not NABER is implemented. There is absolutely no
reason why the Community Members who vote for NABER
representatives can't also be RAB Caucus members. So if
Careerpro can adequately address the questions we outlined in
this letter (more will come later) and if ultimately folks like
the reconstructed NABER proposal, we hope to see the Caucus work
closely with NABER to ensure that NABER meets its fullest
potential.

Thanks for the effort.

The Staff of Arc Ecology